Boulder's Kettle and Stone Brewing to change name to avoid trademark fight

Eric Huber's dream was to make a beer with high-quality ingredients and no artificial additives or enzymes.

The bottles of Kettle and Stone beer and the listings at the brewery's Gunbarrel tap room name each ingredient so customers know what they're putting in their bodies. And the brewery name was chosen to evoke the most basic elements of brewing — the brew kettle and the millstone.

But now the 10-month-old brewery will be changing its name after Escondido, Calif.-based Stone Brewing Co. gave it a difficult choice: change the name or agree not to expand.

"This is my business," Huber said. "I don't want to limit the growth. You work your hide off to get everything in place, and it comes down to a noun."

Huber and his business partners Marty Lettow and Sanjiv Patel said they got the phone call from a Stone executive in September when they were still dealing with the aftermath of the floods. The voice on the other end said he had a cease-and-desist letter sitting on his desk, ready to send.

"We had been in business four months at that point, and we had the 10th largest craft brewery in the country telling us to change our name," Lettow said.

"Non-competition is not the American way," Patel said.

A representative of Stone Brewing could not be reached before deadline, but after publication of this story, spokeswoman Sabrina LoPiccolo emailed a statement to the Camera in which the company thanked Kettle and Stone for changing its name.

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"So what's in a name?" she wrote, after noting that Stone wanted to avoid any legal action if possible. "To both breweries, it's everything. A company's name is not only its identity, it also includes the integrity of its products – in this case beer. Intellectual property is something that may be protected and soon after Stone Brewing Co. was established in 1996, we set out to protect our identity (and integrity) by trademarking Stone Brewing Co.

"To this end, when an infringement on our intellectual property is identified, our first course of action is to approach those involved without lawyers to discuss and see what can be worked out. Trademark conflicts among craft brewers happen. It's up to the two brewing companies to determine that it does not have to be a point of conflict, but instead a point of cooperation."

'You don't want consumers to be confused'

The craft brewing industry generally has a reputation for camaraderie and a "more the merrier" spirit toward the explosion of new beers and breweries. When Boulder's Fate Brewing Co. discovered it had the same name as another new brewery in Scottsdale, Ariz., both breweries agreed to co-exist, at least for now.

But naming disputes and concerns about brand protection are increasingly common in the industry.

In 2011, Longmont's Oskar Blues Brewery renamed its Gordon Imperial Red ale to G'Knight Imperial Red after receiving a cease-and-desist letter from San Jose, Calif.-based Gordon Biersch Brewing Co. The local beer was named for the late brewer Gordon Knight.

Dale Katechis, Oskar Blues' founder, told the Camera at the time that he didn't want to have the fight, which is the same reason Huber gave for changing Kettle and Stone's name.

More recently, Longmont-based Left Hand Brewing filed for a trademark on the term "Nitro" and Oskar Blues followed with a trademark request for "Old Chub Nitro." Left Hand said it would not object to the Old Chub Nitro, but Anheuser-Busch, the nation's largest brewing company, has indicated it may object to the trademarking of "Nitro."

Professor Margaret Campbell of the University of Colorado's Leeds School of Business said established brands tend to be concerned about customers getting confused and then losing business to the new brand.

When cases do go to court, both sides will bring in expert witnesses who have done tests on how customers understand the relationship between two products with similar or overlapping names.

"You would be surprised how often consumers are confused by similar names within the same product category," she said. "They might think it's a spinoff or a sub-brand. Personally, as a marketing professor, I think the notion that you don't want consumers to be confused is a legitimate one."

John Vaughn, an attorney at Caplan and Earnest, a Boulder law firm, said the issue of consumer confusion can be mitigated by, for example, different product labeling and logos. Stone uses a characteristic gargoyle on all of its beers; Kettle and Stone uses three hop buds.

But large companies tend to be aggressive in defense of their brand, and such cases are expensive to litigate, he said.

'There are only so many nouns'

Trademark infringement has been an issue in every industry for years, he said, but the growth of the craft beer sector means such cases likely will be more common.

"What the bigger brand is concerned about is that the smaller company will trade on their good will," Vaughn said.

Both Campbell and Vaughn had the same advice: If you want to be sure no one else has the name, use a made-up word.

Huber and Lettow said they aren't ready to announce the new name just yet. They're finalizing the paperwork and selling off the existing inventory of Kettle and Stone beers in the old bottles.

Coming up with the new name wasn't easy.

"For three months, it was like having a slot machine running in your head," Lettow said. "You think of something, and the first thing you do is look it up and you say, 'Oh, that word is in this beer's name or that brewery's name.'"

Huber said it was hard to find unused words.

"There are only so many nouns, and most of them have been used at some point," he said.

They said they're happy with the name and feel they found something that reflects the same underlying philosophy as Kettle and Stone.

With the decision made, Huber and Lettow said they're eager to get back to making great beer and introducing it to new customers.

Next weekend, they're hosting a big party with bands for a limited release of a newly coined American Bold Ale.

Huber said he wants customers to know that nothing will change about the beer.

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